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Big Stores Can Be Big Bullies, Or How To Commit Theft Prevention Malpractice

Posted by Andrew J. Barovick | Jan 23, 2018 | 0 Comments

It's been a while since I was in the trenches doing criminal law on a daily, high-volume basis. But my inner justice-seeker became reanimated this week when a young (under 20 years of age) medical malpractice client reached out to me about his arrest for shoplifting at Macy's. That it was a dumb thing to do goes without saying. But the reaction by Macy's was not only out of proportion to the crime–it was unethical, in that the store tried to take advantage of the fear and lack of sophistication of a New York City teenager.

My client–I'll call him James–tried to walk out of Macy's with a sweater valued at approximately $300.00, but was caught by store security officers before he ever left the premises. The sweater, in pristine condition, went from the bag in my client's hands into the possession of Macy's security officers. The NYPD issued him a Desk Appearance Ticket (DAT) for the misdemeanor charges of petit larceny and criminal possession of stolen property in the 5th degree, which he will have to answer in criminal court.

But Macy's followed up by sending James a letter from its Civil Recovery Department, claiming that Macy's was entitled to collect $500.00 in civil damages, and threatening to “ask a law firm to follow up on [its] behalf” if he did not make payment in full. They justified it by citing to NY GOL 11-105, which they loosely quoted to warn that “a person who commits larceny against the property of a mercantile establishment shall be civilly liable…for the retail price of damaged or unrecovered merchandise, up to $1500, plus a penalty of 5 times the retail price of the merchandise or $75, whichever is greater, but not to exceed $500.” Relying on the law, Macy's told James, “we make demand for the payment of $500.00 from you as settlement of the civil claim in connection with this incident.”

There was just one problem here. The sweater was not “damaged or unrecovered.” Therefore, the Macy's Civil Recovery Department had no basis to go after James for civil damages. And it had no basis to threaten him with legal action if he didn't pay up. Yet, when James contacted Macy's Security upon receiving the letter to try to determine how seriously to take it, he was advised to pay the money. In fact, the woman at Macy's went so far as to tell James that the judge in criminal court would probably look more favorably on him when deciding his fate if he paid before his court date.

Luckily for my client, and his father, who was about to send a check that he could ill afford to a company that did not deserve it, I was able to explain that Macy's was trying to pull a scam on them, and that they should not fall for it. But Macy's would have been successful in conning money from my client's family had James not mentioned the arrest to me. And you can be sure that they have conned lots of cash out of lots of unsuspecting New Yorkers already. Macy's, this is not a good look for you. Lay off the kids, and clean up your act.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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